661 



L A W. 



Law by a decision 1 762, Justice, founded on a tract of ancient 

 ot Scotland, decisions recovered from the records, the offending hus- 

 " TV"-' band was allowed to retain the tocher. 



TITLE III. Of Tutors and Curators, Parent and 

 Child, Master and Servant. 



Pupillarity. 1 . The stages of life principally distinguished in law, 

 are pupillarity, puberty or minority, and majority. A 

 child is in pupillarity from the birth till 14 years of 



a<*e if a male, and till twelve if a female. Minority 



Minority. ," . . .,. , . . . * 



begins where pupillarity ends, and continues till majo- 



Majority. r ; tVj w hich by the law of Scotland is the age of twenty- 

 one years complete both in males and females ; but mi- 

 nority in a large sense, includes all under age, whe- 

 ther pupils or puberes. Because pupils cannot in any 

 degree act for themselves, and minors seldom with dis- 

 cretion, pupils are put by' law und/sr the power of tu- 

 tors, and minors may put themselves under the direc- 

 Tutory. t' on f curators. Tutory is a power and faculty to go- 

 vern the person, and administer the slate of a pupil. Tu- 

 tors are either nominate, of law, or dative ; which an- 

 swers to the tutores lestamenlarii, legitimi, and dativi, 

 of the Roman law. 



Tutor no- 2. A tutor nominate, is he who is named by a father 

 ruinate. in his testament or other writing, to a lawful child. As 

 the right of naming tutors proceeds from the father- 

 Father only i p OW er, those who are named by a mother or stran- 

 can name * * 



tutors. S er are not P r P er tutors ; their powers are limited to 

 the special estate left to the pupil ; and therefore their 

 being named cannot hinder the pupil from getting one 

 who may defend his person, and manage his other 

 estate, the nomination of tutors being entirely pen- 

 dent on the will of the father, may be altered at his 

 pleasure, even though it should have been engrossed in 

 a writing in its nature irrevocable, as a disposition. A 

 tutor nominate is not obliged to give caution for the 

 faithful discharge of his office, because his fidelity is 

 presumed to have been sufficiently known to the father. 

 Tutor-of- 3. If there be no nomination by the father, or if the 

 law, who ? tutors nominate do not accept, or if the nomination falls 

 by death or otherwise, there is place fora tutor-of-latv ; 

 so called, because he succeeds by the mere disposition 

 of law. This sort of tutory devolved by the ancient 

 Roman law, and devolves also by ours, upon the next 

 agnate ; but the word agnate is differently understood 

 in our law and in theirs. Agnates in the sense of the 

 Roman law, were those whose propinquity was connect- 

 ed by males only ; in the relation of cognates, one or 

 more females were interposed. We understand by ag- 

 nates, all those who are related by the father even 

 though females intervene ; and by cognates, those who 

 are related by the mother. 



Not en- 4., Where there are two or more agnates equally near 



tntstnl with ^ o t jj e p u pil ; he who is entitled to the pupil's legal suc- 

 nunii n cession falls to be preferred to the others, because it is 

 presumed that he will be the most diligent in preserv- 

 ing the estate. But as the law suspects that he may 

 not be over careful to preserve a life which stands in 

 the way of his own interest, this sort of tutor is exclu- 

 ded from the custody of the pupil's person, which is 

 commonly committed to the mother, while a widow, un- 

 til the pupil be seven years old ; and on default of the 

 mother to die next cognate. The tutor-of-law must be 

 . at least twenty-five years of age. He is served or de- 

 lls clared by a jury of sworn men, who are called upon a 

 menu" brief issuing from the chancery, which is directed to 

 any judge having jurisdiction. He must give security 

 before he enters upon the management. 

 7 



5. If no tutor-of-law demands the office, any person, Law 

 even a stranger, may apply for a tutory-dalive. But, of Scotland, 

 because a tutor-of-law ough*to be allowed a. competent -r"""~ Y "T 

 time to deliberate whether he will serve or ntt, no tu- t ; ve 

 tory-dative can be given till the elapsing of a year from 



the time at which the tutor-of-law had first a right to 

 serve, i. e. till a year after the death of the deceased, if 

 the father has named no tutors ; and if he has named tu- 

 tors, who have accepted, not till a year after the nomina- 

 tion falls by the death or incapacity of the nominees. It Is named 

 is the king alone, as the father of his country, who gives "? l 

 tutors-dative, by his Court of Exchequer ; and no gift 

 of tutory can pass in Exchequer without the citation 

 or consent of the next of kin to the pupil, both by the 

 father and mother; nor till the tutor gives security, 

 recorded in the books of Exchequer. There is no- 

 room for a tutor-of-law, or tutor-dative, while a tutor- 

 nominate can be hoped for : And tutors-of-law, or da- 

 tive, even after they have begun to act, may be ex- 

 cluded by the tutor-nominate, as soon as he offers to 

 accept, unless he lias expressly renounced the office. 

 If a pupil be without tutors of any kind, the Court of j u( ji c ; a i 

 Session will, at the suit of any kinsman, name a factor factor for a . 

 (steward) for the management of the pupil's estate, minor, 

 who must conduct himself by the rules laid down, Act who? 

 S. 13. Feb. 1730. 



6. After the years of pupillarity are over, the minor Curators, 

 is considered as capable of acting by himself, if he has 

 confidence enough in his own capacity and prudence. 



The only two cases in which curators are imposed upon 

 minors, are, 1 . When they are named by the father in 

 liege poustie, (or in a state of health), in consequence of 

 1696, c. 8. 2. Where the father is himself alive ; for a fa- The father 

 ther is ipso jure, without any service, administrator, that is tutor and 

 is, both tutor and curator of law to his children, in rela- "' 

 tion to whatever estate may fall to them during their mi- ' 

 nority. This right in the father does not extend to 

 grand-children, nor to such even of his immediate chil- 

 dren as are tbrist'amiliated : Neither has it place in 

 subjects which are left by a stranger to the minor, ex- 

 cluding of the father's administration. . If the minor 

 chooses to be under the direction of curators, he must Form *>r 



raise and execute a summons, citing at least two of the cnoosl "e 



, , . , i i curators. 



next of km to appear before .his own judge-ordinary, 



upon nine days warning. At the day and place of ap- 

 pearance, he offers to the judge a list of those whom 

 he intends for his curators : Such of them as resolve to 

 undertake the office, must sign their acceptance, and 

 give caution; upon which an act of curatory is ex- 

 tracted. 



7. These curators are styled ad negolia, to distinguish Curator ad 

 them from another sort called curators ad lites, who are lift' 

 authorised by the judge to concur with a pupil or mi- 

 nor in actions of law, either where he is without tutors 

 and curators, or where his tutors or curators are parties 

 to the suit. This sort is not obliged to give caution, 

 because they have no intermeddling with the minor's 

 estate : They are appointed for a special purpose ; and, 

 when that is over, their office is at an end. Women W ] 10 j e |, ar . 

 were, by the Roman law, debarred from the offices both red from tu- 

 of tutory and curatory, except in special cases : With torj and 

 us they are capable, under the following restrictions : curatory ; 

 1. The office of a female tutor or curator falls by her 

 marriage, even though the nomination should provide 

 otherwise ; for after she is herself subjected to the 

 power of a husband, she is incapable of having any 

 person under her power. 2. No woman can be tutor 

 of law ; for that sort is marked out, purely on the score 

 of blood, without any regard to personal qualities. Pa- 





